High Court of Punjab and HaryanaCRA-D/666/2002dismissed

State Of Haryana v. Ram Bhagat

2024-05-1625 pages

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+,+,9:;+ Challenging the legality of the impugned judgment dated 21.12.2001 passed by the Additional Sessions Judge, Bhiwani, whereby the accused-respondent has been acquitted of the charges under Sections 306/376/452 IPC, the State of Haryana has preferred the present appeal before this Court.

As per the case of the prosecution, the FIR in the present case was registered on the basis of the statement made by PW-11 Ram Chander son of Mange Ram, wherein he stated that he was posted as a Baildar in PWD Department. He had four children i.e. two sons and two daughters.

The eldest daughter Savita was aged about 14 years. On the night intervening 9th/10th August, 1999, he along with his family had taken their meals and were sleeping in the courtyard of their house. At about 12:30 AM in the night, his daughter Savita cried all of a sudden and on hearing her cry, he and his wife Kamla woke up and saw that Ram Bhagat son of Ram Kumar, their neighbour, was lying on his daughter Savita after opening the string of her salwar and removing his underwear. On seeing them, Ram Bhagat tried to flee from the spot after wearing his underwear, however, he was apprehended by him and his wife. Meanwhile, his daughter Savita went inside the room and due to this incident, she consumed the SPRAY lying there.

On hearing the noise, his brother Lakshmi, his cousin Satyawan son of Bahadur and other neighbourers also reached there. They handed over Ram Bhagat to Balwan son of Ram Sarup and Chander Bhan son of Mange Ram. The complainant and Ranvir son of Bahadar arranged a vehicle and shifted his daughter Savita to Tosham hospital for treatment. However, on reaching the hospital, his daughter expired. He further alleged that accused Ram Bhagat had entered their house and committed rape with his daughter and due to this incident, his daughter had consumed SPRAY and lost her life and prayed for strict action against Ram Bhagat, accused. With these allegation, the FIR (Ex.PM) was recorded in the police station by PW-14 ASI Bhim Singh and after registration of the FIR, the special report was sent. 3.

During the course of investigation, the inquest proceedings were recorded, post-mortem examination was got done from the doctors and the accused was formally arrested. After completion of the

< investigation, final report under Section 173 Cr.P.C. was presented before the Area Magistrate, which was committed to the Court of Sessions for trial.

After considering the material placed on record, the trial Court ordered framing of charges under Sections 376, 306, 452 IPC. The accused claimed his innocence and prayed for holding a trial by the trial Court.

To prove the charges against the accused-respondent, the prosecution examined 14 witnesses and exhibited various documents before the trial Court. The prosecution examined Constable Vir Shakti Singh, Draftsman as PW-1, who had prepared the site plan (Ex.PA), on pointing of Satyawan and Kamla. The testimonies of PW-2 Constable Satyawan, PW-4 Constable Ram Dhari and PW-5 HC Rattan were formal in nature. The prosecution examined Constable Ved Singh as PW-3, who had taken and handed over the special report to the Illaqa Magistrate at 11 AM on 10.08.1999. Bhoop Singh, Head Master, Government High School, Riwasa appeared as PW-6, who brought the record relating to date of birth of Savita daughter of Ram Chander and as per his record, the date of birth of Savita was 05.02.1985. He exhibited the certificate Ex.PE. However in cross-examination, he stated that the date of birth was recorded in the record on the basis of Middle Examination certificate. Constable Ishwar Singh appeared as PW-7, who was a witness on the report under Section 174 Cr.P.C. The prosecution further examined PW-8

Dr. K.L. Bawa, who conducted the post-mortem examination on the dead body of Savita on 10.08.1999 and found the following condition:-

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As per PW-8 Dr. K.L. Bawa, the cause of death in his opinion was organophosphorous and halogenated hydrocarbon compound of insecticides. After seeing the FSL report, Ex.PK, he opined that the possibility regarding sexual intercourse could not be ruled out. In his cross-examination, he also admitted that there was no injury on the private part and other parts of body, internal and external of patient Savita. The possibility of injury by a forcible intercourse could not ruled out. He further admitted that semen remains in the vagina up-to 12 days. 6.

Sadhu Ram, Statistical Assistant, CMO Office, Bhiwani appeared as PW-9, who stated that as per the report Ex.PL. the date of birth of Savita was 18.12.1985 and the date of registration was 30.12.1985. As per him, Kavita was a child at Sr.No.3 in the family. There was no mention of date of birth of earlier two children. The testimony of PW-10-ASI Ram Kumar was formal in nature. The prosecution examined its star witness Ram Chander, complainant, as PW-11 who reiterated the version as mentioned in the FIR Ex.PM. However, in cross-examination, he admitted that the boundary walls of his house, where they were sleeping on the night of the occurrence was about five feet. Even the height of boundary wall towards the western side and towards the house of Satyawan was six feet. He had closed the door of his house, while going to sleep.

The house of Satyawan was towards the western side of his house and the house of complainant opened towards western side. He further admitted that there were six cots in the courtyard on that night. Cot of Savita was near their kitchen. Next to her cot, there was cot of his son Naresh, who was sleeping and the cot of his wife was towards western side.

Cot of Anita was next to the cot of his younger son and next to her was the cot of her elder son. His cot was near the door. All the lights were switched off, when they were sleeping. He further admitted in cross-examination that he was unarmed, when he caught hold of the accused and even his wife was unarmed. He did not cause any injury to Ram Bhagat, however, he might have sustained some injuries while making rescue. Lakshmi and Satyawan also did not cause any injury to the accused. He denied the suggestion that there was a love affair between his daughter and Ram Bhagat, accused. 7.

The prosecution further examined PW-12 Dr. Hemant Singh, who had medico-legally examined Ram Bhagat, accused, on 10.08.1999 and observed as under:- 1!

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xiii) Reddish contusion 6.0 cm. x 4.0 cm. obliquely placed on the left side of chest just below the medial and of the left clavicle."

He proved the carbon copy of the MLR of the accused as Ex.PO. As per him, the patient was feeling pain in some parts of his body. A person with such injuries may or may not scale on the wall. 8.

The prosecution further examined PW-13 Ramesh Kumar SI/SHO, who had investigated the matter in the present case. However, in cross-examination, he admitted that he did not show any marks of scaling the wall, because it was not a case of scaling the wall. It was found during the investigation that the accused had entered the house through the main gate, when the same was opened at the time of occurrence. He had not shown any light point in the site plan. The prosecution further examined

PW-14 Bhim Singh (Retd. ASI), who had recorded the statement Ex.PN of Ram Chander PW-11, father of Savita (since deceased) and made his endorsement Ex.PN/1, on the basis of which, FIR Ex.PM was recorded by Ram Kumar ASI.

After examining 14 witnesses, the prosecution evidence was closed and the entire incriminating evidence was put to the accused. Even in his statement under Section 313 Cr.P.C, the accused had offered the following explanation regarding his innocence:- 1D:$

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= 0 In his defence, the respondent/accused had examined Ram Kumar, Head Master, Government Primary School, Village Dharan as DW-1, who had brought the summoned record relating to the admission of

Savita (since deceased) daughter of Ram Chander. She was admitted in their school on 18.07.1988 in Class 1st and the photocopy of the register was Ex.DA. As per their record, her date of birth was 05.07.1982 and her admission form was available with them, which was Ex.DB. He further stated that this date of birth continued in their record till 24.10.1989. However, in cross-examination, he stated that while she was admitted on 22.07.1991, her date of birth was shown as 05.02.1985. 11.

Learned State Counsel vehemently argued that the trial Court had completely brushed aside the evidence led by the prosecution and the observations made by the trial Court were legally unsustainable. Learned State Counsel further submitted that the prosecution had led overwhelming evidence to show that Savita (since deceased) was aged about 14 years and had attended the classes at 9th standard in her school. Even she was aged about 14 years and her consent with regard to sexual intercourse was immaterial. Since, she was subjected to forcible sexual intercourse, the respondent/accused was liable to be convicted by the trial Court. Learned State Counsel further submitted that the trial Court had drawn wrong inference from the fact that the FIR in the present case was got registered by the complainant after a delay of 11 hours.

In fact the main challenge before the family of Savita (since deceased) was to save her life and in that process, the delay of 11 hours had occurred, which was usual delay in such like matters. Learned State Counsel further contended that the trial Court had erred in disbelieving the evidence of PW-11 Ram Chander, complainant/father of the prosecutrix and even after lengthy cross-examination, his testimony could not be shattered in any manner.

Further, human semen was detected on the underwear of Savita (since deceased) and since she had consumed a poisonous substance, after she was subjected to forcible sexual intercourse, the respondent was liable to be convicted for the offences under Sections 306/376 IPC. Learned State counsel further submitted that even the accused in the present case had suffered superficial injuries and the trial Court had drawn wrong inferences from the said fact and such minor injuries were liable to be ignored, which were suffered by the respondent, while saving himself from the clutches of the villagers, who had gathered at the spot. 12.

On the other hand, learned counsel appearing on behalf of the accused-respondent submitted that the impugned judgment was based on correct appreciation of the evidence led by the parties and the settled canons of law. The trial Court had considered every aspect of the matter in the light of the evidence led by the prosecution. However, the trial Court correctly held that the evidence led by the prosecution did not inspire confidence and the testimony of PW-11 Ram Chander lacked independent corroboration and his solitary statement was full of material contradictions. Thus, the impugned judgment passed by the trial Court is liable to be upheld.

13.

We have heard the learned counsel for the parties and have carefully gone through the trial Court record in the present case. 14.

In fact in the present case, the respondent was tried for committing rape upon Savita (prosecutrix) and was further charged with abetment of suicide by the prosecutrix. A further charge was set up against

the respondent that he had criminally trespassed into the residential house of the prosecutrix and the complainant at night and the evidence of the prosecution has been discussed, while determining the above stated charges separately.

15.

The first charge against the respondent/accused was with regard to commission of rape on Savita, aged about 14 years. To prove the said charge, the prosecution tried to set up a case that the date of birth of Savita, as per Ex.PE, was 05.02.1985, whereas the occurrence had taken place on the night intervening 9/10.08.1999. The prosecution had examined PW-6 Bhoop Singh, Head Master, Government High School, Riwasa, who stated that the date of birth of Savita as per the record (Ex.PE) was 05.02.1985. However, in cross-examination, he admitted that the said date of birth was recorded on the basis of middle examination certificate. The second witness, which was heavily relied by the prosecution, was PW-9 Sadhu Ram, SA, CMO Office, Bhiwani, who proved the date of birth of Kavita was 18.12.1985 and Kavita was a child at Sr. No.3 in the family.

He further admitted that there was no mention of date of birth of earlier two children. It requires mention that he had prepared a report Ex.PL, pertaining to the date of birth of Kavita, who was stated to be a child at Sr. No.3 in the family. In fact, the testimony of PW9 Sadhu Ram, SA, had demolished the entire prosecution case as the name of the prosecutrix in the present case was Savita and she was the eldest child in the family as per the testimony of her father PW-11 Ram Chander. In fact the prosecution could not lead any cogent and unimpeachable evidence, which could prove the date of birth of Savita to be 05.02.1985.

< 16.

On the other hand, the respondent had examined Ram Kumar, Head Master as DW-1, who had proved the date of birth of Savita (prosecutrix) as 05.07.1982 and this date of birth continued in their record till 24.10.1989. He proved the copy of register as Ex.DA and certificate Ex.DC before the trial Court. Thus, the trial Court had correctly recorded the date of birth of Savita (prosecutrix) was 05.07.1982 and on the date of occurrence i.e. on 10.08.1999, she was aged more than 16 years. 17.

As per the provisions of Section 375 and 376 of Indian Penal Code, if a sexual assault was committed with a girl less than 16 years of age, there was no question of consent on the part of such a female. However, in the present case, it was evident from the testimony of DW-1 Ram Kumar, Head Master that the age of Savita (prosecutrix) was more than 17 years and the trial Court correctly held that the prosecution had failed to show that Savita was less than 16 years of the age. Consequently, it stands established that she was aged more than 16 years on the date of occurrence and as such, she was able to give her consent for the sexual intercourse.

18.

This Court further agrees with the findings recorded by the trial Court that in the present case, there was no forcible sexual intercourse by the respondent/accused with the prosecutrix. Before proceeding further, we would refer to the testimony of PW-8 Dr. K.L. Bawa, who clearly deposed that on examination of organs of the generation, there was no mark of injury externally. No bleeding was present on the vagina. He further admitted that there was no injury on the private part and other parts

of the body, internal and external, of Savita. He further admitted that in case of forcible intercourse, the possibility of suffering of injuries could not be ruled out. He further admitted that the semen remains in vagina upto 12 days. Apart from that, even from the testimony of PW-11 Ram Chander, complainant, it is apparent that there were six cots in their courtyard, where the complainant, his wife and all other family members were sleeping. Consequently, it is highly unbelievable that Savita (prosecutrix) was subjected to sexual intercourse by respondent/accused against her wish. Rather the evidence led by the prosecution itself clearly ruled out such an incident and the findings recorded by the trial Court are based on correct appreciation of evidence on this aspect of the matter. 19.

The prosecution had further charged the respondent of the abetment of suicide of Savita (prosecutrix) in the present case. !

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' 22.

Keeping in view the aforesaid principles of law, this Court is required to address whether there has been abetment of suicide in the present case or not. Mere bald allegations of PW-11 Ram Chander, without any positive action in the proximity to the time of occurrence on the part of the accused which led to commission of suicide by Savita, a conviction in terms of Section 306 IPC would not be sustainable. There has to be a positive action, which creates a situation for the victim to put end to her life. In the present case, the prosecution had examined PW-11 Ram Chander, a solitary witness, to prove the charge under Section 306 IPC against the respondent/accused. However from the entire testimony, it is apparent that after Savita was allegedly caught with respondent, she all of a sudden went inside the room and had consumed SPRAY (some

poisonous substance). Apart from the testimony of PW-11 Ram Chander, the prosecution had not led any evidence to prove the abetment on the part of the present appellant. Even the trial Court has correctly absolved the respondent of the charge under Section 306 IPC, as there was no positive act on the part of the present respondent by which he had instigated Savita (prosecutrix) to commit suicide. Thus, the ingredients of the offence under Section 306 IPC are completely missing in the instant case. 23.

Apart from that, we have considered the detailed reasons recorded by the trial Court, while acquitting the respondent of the charge under Section 452 IPC. The prosecution had examined PW-13 Ramesh Kumar SI/SHO, who had conducted the investigation in the present case. He clearly admitted in his cross-examination that he did not show any marks of scaling of the wall, because it was not a case of scaling the wall. It had come in the investigation that the accused had entered in the house through the main gate, when the same was opened at the time of occurrence. Even in the foregoing paragraphs, we have clearly discussed the fact that Savita (prosecutrix) apparently appeared to be a consenting party in the present case.

Apart from that, the defence had also proved on record, four original love letters marked as D-I, D-J, D-K and D-L, which were written by Savita (prosecutrix) to the respondent. In fact, the defence had set up a positive case that both of them while having love affairs for the last more than 2 years prior to her death, the prosecutrix used to write love letters to him. Apart from that, with regard to this charge also, the prosecution had placed reliance on the sole and uncorroborated testimony of PW-11 Ram Chander, which was otherwise full of contradictions.

per the initial statement Ex.PN/FIR Ex.PM, Lakhsmi, brother and Satyawan cousin of Ram Chander PW-11 were attracted at the spot. However, none of them was examined by the prosecution. Apart from that, the complainant had handed over the custody of Ram Bhagat to Balwan son of Ram Saroop and Chander Bhan son of Mange Ram. However, for the reasons best known to the prosecution, they were not examined as witnesses in the present case. Thus, the trial Court correctly observed that the offence under Section 452 IPC cannot be said to have been proved, in accordance with law in the present case. 24.

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In view of the detailed discussion hereinabove as also the law laid down by the Hon'ble Supreme Court as well as by this Court, the view taken by the trial Court while passing the impugned judgment is a reasonable view, based on the evidence on the record and as such is not required to be interfered with. Therefore, we find no reason to interfere with the findings recorded by the trial Court and accordingly, the present appeal is hereby dismissed. Pending application(s), if any, shall also stand disposed of.

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